Concurring in Part, Dissenting in Part,
I agree with the quantum of fees and costs27 awarded in the majority opinion as against the Defendants before they abandoned the defense of the redistricting statute at issue in this case. However, I do not agree that the Intervenor-Defendants are liable for any fees because, as explained below, I understand the Supreme Court’s decision in Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989) to foreclose such an award against the Intervenor-Defen-dants. Thus, I respectfully dissent from that part of the majority opinion.
I.
In Zipes, the Supreme Court announced that courts may impose fees against “blameless” intervenors “only where the intervenors’ action was frivolous, unreasonable, or without foundation.” Id. at 761, 109 S.Ct. 2732. In explaining its concept of “blameless,” the Court made it clear that such intervenors will not be liable for fees because they have not violated anyone’s civil rights. This distinction is made apparent at the outset by how the Court framed the issue to be decided:
In this case we must determine under what circumstances [the fees statute] permits a court to award attorney’s fees against intervenors who have not been found to have violated the Civil Rights Act or any other federal law.
Zipes, 491 U.S. at 755, 109 S.Ct. 2732 (emphasis added). In resolving that issue, the text of the decision then explains, with equal clarity, that liability for fees is dependent on merits liability. The Court says as much six times,28 all in support of the threshold premise that “[o]ur cases have emphasized the crucial connection between liability for violation of federal law and liability for attorney’s fees under federal fee-shifting statutes.” Zipes, 491 U.S. at 762, 109 S.Ct. 2732.
Like the intervenors in Zipes, the Inter-venor-Defendants in this case have not violated anyone’s civil rights or any other federal law. They have not been found liable on the merits of the underlying action, and they are in no way responsible *959for the underlying constitutional violation—the decisive factor for fee liability according to Zipes. This makes the Inter-venor-Defendants indistinguishable from those in Zipes, and, accordingly, they cannot be held liable for attorney’s fees absent a finding that their intervention was “frivolous, unreasonable, or without foundation.” Id. at 761, 109 S.Ct. 2732. In imposing fees without the requisite finding, the majority, I respectfully submit, misapprehends the holding in Zipes and misconstrues the precedent from other jurisdictions on which the award against the Intervenor-Defendants is based.
II.
The majority correctly recognizes that the outcome of the motion for a fee award against the Intervenor-Defendants turns on whether Zipes applies in this case. Ante, at 935. However, in deciding that Zipes does not govern, the majority opinion proceeds from the erroneous assumption that the rule pronounced by Zipes is to be discerned from “four key factors in [the Zipes majority’s] decision,” ante, at 936, and then determines that “all of [those four factors are] distinguishable from the circumstances of this case.” Ante, at 944. That analysis, I think, misapprehends what Zipes actually held.
The fundamental and animating principle enunciated in Zipes is that an interve-nor’s fee liability must run with liability on the merits. In framing the issue presented and in the detailed explanation of its holding, the Supreme Court makes clear that merits liability, ie. blameworthiness for the underlying civil rights violation, is the legal predicate for imposing liability under federal fee shifting statutes. The Court underscored that point by saying specifically that “[o]ur cases have emphasized the crucial connection between liability violation of federal law and liability for attorney’s fees under federal fee shifting statutes.” Zipes, 491 U.S. at 762, 109 S.Ct. 2732. Then, citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Court reiterated that “crucial connection” by endorsing its previous instructions that “liability on the merits and responsibility for fees go hand in hand,” that “fee liability runs with merits liability,” that “[f]ee and merits liability run , together,” and that “[s]ection 1988 simply does not create fee liability where merits liability is nonexistent.” Id. (internal quotes omitted). That, as I see it, is the rule that Zipes tells us to apply.29
The majority opinion concludes that Zipes produced a quite different rule in the form of a four-factor test. That, I respectfully submit, misapprehends the actual holding of Zipes. And, the majority’s view that “the “central fact” of Zipes” is “that the union intervened to protect distinct third-party interests,” ante, at 939, is, I also submit, inaccurate. Indeed, the dissenters in Zipes faulted the Court for cre*960ating a “categorical rule” based on wrongdoing, and for failing to account for the very same factors that the majority today describes .as “key”:
Aside from its unpersuasive assertion that fee liability must be conditioned on a finding of wrongdoing, the majority never' even attempts to explain why-it adopts a categorical rule directing district courts to treat all intervenors like civil rights plaintiffs. Whatever validity such treatment might have where an intervenor raises a civil rights claim, there is absolutely no justification for it where, as in this case,- an intervenor asserts non-civil-rights claims of third parties, or where an intervenor raises no third-party claims at all.
Zipes, 491 U.S. at 778, 109 S.Ct. 2732 (Marshall, J., dissenting). The dissent went on to observe, and correctly .so, that the rule set by Zipes would apply equally to “parties [who] intervene for the sole purpose of defending the challenged practice or opposing the. relief sought by the civil rights plaintiffs.” Id..
Responding to the dissenters’ concerns, the Zipes Court was unequivocal. Rejecting the “hostility to categorical rules ... supposedly enshrined in the [statutory] language,” 491 U.S. at 760, 109 S.Ct. 2732, the Court responded, not by suggesting that its holding was narrow, but rather by pointing out that prior decisions had adopted rules “no less ‘categorical’ than the rule we set forth today.” Id. at 761, 109 S.Ct. 2732. Moreover, while acknowledging that its broad rule could discourage some civil rights suits, the Court emphasized that an intervenor’s culpability, or lack thereof, was simply the more important consideration:
But even if the inability generally- to recover fees against intervenors did create some marginal disincentive against Title VII suits, we would still have to weigh that against other considerations, ■as we did in Christiansburg Garment. Foremost among these is the fact that, in contrast to losing Title VII defendants who are held presumptively liable for attorney’s fees, losing intervenors like petitioner have not been found to have violated anyone’s civil rights.... Awarding attorney’s fees against such an intervenor would further neither the general policy that wrongdoers make ■whole those whom they have injured nor Title VU’s aim of deterring employers from engaging in discriminatory practices.
Id. at 761-62, 109 S.Ct. 2732 (emphasis added).
The majority opinion responds to Zipes’s focus on culpability for the underlying civil rights violation by finding that the Interve-nor-Deféndants here' are not “blameless” as the term is used in Zipes. Ante, at 937, 939-41. But, that is not because the majority concludes that the Intervenor-Defen-dants have been found liable on the merits for violating federal law—the way the term is actually used in Zipes. Instead, the majority opinion bases blame on the fact that the' Intervenor-Defendants became the Plaintiffs’ “sole opposition,” ante, at 940, and thus acted as “functional defendants.” Ante, at 940-42. For that precept, the majority opinion quotes the Southern District of Florida for' the argument that Intervenor-Defendants are blameworthy under Zipes because- they “defended the unconstitutional statute voluntarily and in doing so attempted to aid in the offending statute’s enforcement,” Ante, at 940 (quoting Mallory v. Harkness, 923 F.Supp. 1546, 1553 (S.D. Fla. 1996), aff'd, 109 F.3d 771 (11th Cir. 1997)), I submit that Zipes expressly rejected that view, and that it is logically flawed.
As the Supreme Court held in Zipes, the concept of “blame” is synonymous with *961responsibility for, the underlying civil rights violation, (ie., liability on the merits). It has nothing to do with “prolonging litigation” or being a “functional defendant,” the test set out in the majority opinion today. Nor is it relevant that “the Intervenor-Defendants, as Plaintiffs’ sole opposition, had the ability to grant Plaintiffs’ relief on the merits by simply dropping its defense.” Ante, at 940. Each of these alleged “distinctions” were present in Zipes, where the intervenors prolonged the litigation “as the Plaintiffs’ sole opposition” for years, and could have granted the relief sought by the Plaintiffs and ended the case “by simply dropping its defense.” Id. Nevertheless, the Supreme Court expressly disavowed these “distinctions” as important, much less controlling, factors. 491 U.S. at 765, 109 S.Ct. 2732 (“Intervention that is in good faith is by definition not a means of prolonging litigation.”); see also id. (“Of course, an intervenor may sometimes raise an argument that brings into question not merely the appropriateness of the remedy but the plaintiffs very entitlement to relief ... [b]ut that an in-tervenor can advance the same argument as a defendant does not mean that the two must be treated alike for purposes of fee assessments.”)
Still more problematic is the holding that a person affirmatively commits a civil rights violation, or somehow participates in some other underlying violation of federal law, by joining, and participating in, a lawsuit. Ante, at 940-42. That proposition, I think, is wrong. Although the decision to join a pending suit and to defend the statute at issue therein may be inadvisable in some circumstances, it does not itself constitute a violation of law. Moreover, if, as the majority holds, the act of intervention and continuing to press one’s case ipso facto makes an intervenor “culpable” for a violation of federal law, then the rule of Zipes collapses in on itself, and the very phrase “blameless intervenor”. becomes a self-contradictory concept. This is neither a necessary nor a permissible reading of Zipes. Instead, it is evidence that the majority misconstrues the precedent on which it relies.
I do not read Mallory or Planned Parenthood of Cent. New Jersey v. Attorney Gen. of State of New Jersey, 297 F.3d 253 (3d Cir. 2002), to support the result reached today.30 Nor do I think that either case supports the proposition that defending a statute makes one a violator of someone’s civil rights. Instead, as I understand them, both cases stand for the commonsense principle that, where an unconstitutional statute is involved, the “blameworthy” party under Zipes is the state that enacted the statute.
Both Mallory and Planned Parenthood involved unconstitutional statutes, and in both cases the intervening party was a branch of the state government that had enacted the statute at issue. Mallory involved a law mandating that at least one member (of three) of the Florida Bar’s Judicial Nominating Commission had to be either a woman or racial/ethnic minority. Mallory, 923 F.Supp. at 1550. The appointing body (the Florida Bar of Governors) was sued, but declined to defend the statute from the beginning. Id. The Attorney General, acting in’his' official capacity on behalf of the State of Florida, intervened to defend the constitutionality of the statute. Id. In Planned Parenthood, the state *962legislature passed an abortion-related statute over executive veto. 297 F.3d at 259. The law was promptly challenged,, and the enacting legislature immediately intervened after the executive branch had declined to defend the constitutionality of the statute. Id.
In both cases, fees were ultimately awarded against the intervenor-defen-dants: the States. Unlike the decision reached by the majority today, however, both of those decisions are consistent with the principle of Zipes (and Graham) that fee liability runs with a finding of culpability for the underlying civil rights violation. That is because, where an unconstitutional statute is involved, the “blameworthy” party is the State that enacted it. By enacting and enforcing an unconstitutional law, the State is the clear parallel to the “losing defendant who has committed a legal wrong” as explained in Zipes, 491 U.S. at 762, 109 S.Ct. 2732. And, when a statute is declared invalid, it is the State that has “been found to have violated [someone’s] civil rights.” Id. That, of course, is the fact pattern in both Mallory and Planned Parenthood. Consequently, when those courts imposed fee liability on the intervening state actors, they were imposing fees against the entity that was directly responsible for the constitutional violation. Therefore, both decisions fall well within the rule of Zipes requiring that merits and fee liability go hand in hand.
The majority sees this interpretation of Mallory and Planned Parenthood as creating a distinction based on the status of the intervenors as state actors. Ante, at 942. That argument misses the point. As explained above, Mallory and Planned Parenthood created no new rule of intervenor liability, much less one based on the status of the intervenor as a public entity. Instead, both cases simply applied Zipes, which preconditions liability for fees on a finding that the intervenors are responsible on the merits for the underlying civil rights violation. Thus, the fact that the interveners in Mallory and Planned Parenthood were states merely explains how each court made that necessary finding: as representatives of the States that had enacted the unconstitutional statutes, the in-tervenors in both cases represented the actual entity responsible on the merits for the constitutional violations that had occurred. See Mallory, 923 F.Supp. at 1553 (“[T]he AG, acting as representative of the state, cannot be ‘innocent’ in terms of violating the Plaintiffs civil rights. The state enacted, enforced, and defended the unconstitutional statute.”). Under Zipes, it was thus entirely proper to impose fees against them.
The majority also finds fault because the dissent “fails to acknowledge that both the original defendants and the intervenors in Mallory and Planned Parenthood were branches of state government.” Ante, at 942 (emphasis in original). Respectfully, that aspect of Mallory and Planned Parenthood, while clearly true, only further cuts against the majority’s analysis. In fact, it is that aspect of both cases—one that is also notably absent in the present ease—which justified the courts’ decision to treat the original and intervening defendants as “functionally equivalent.” Planned Parenthood, 297 F.3d at 264. To hold otherwise would have allowed the “loophole” discussed in Mallory and permitted the State- to evade liability for fees despite being directly responsible for the underlying constitutional violation (a result contrary to Zipes). 923 F.Supp. at 1553. Such “functionalism” was further necessary in Planned Parenthood because the interve-nors were asserting a defense of legislative *963immunity.31 297 F.3d at 261-265.
Finally, the majority finds it important that the Intervenor-Defendants are members of Congress who were elected under the district as drawn. But again, the rule of Zipes does not turn on whether the intervening party is a private or public actor, but rather on whether the interve-nor is responsible for the civil rights violation that occurred. Here, the Intervenor-Defendants do not represent “the Commonwealth of Virginia, whose laws ran afoul of the Federal Constitution.” Ante, at 941. For fee liability purposes, that puts them in the same position as the union-intervenors in Zipes, who neither created nor enforced the discriminatory policy at issue but benefitted from its existence.32 491 U.S. at 757, 109 S.Ct. 2732. Most “crucially],” id. at 762, 109 S.Ct. 2732, the Intervenor-Defendants here are analogous to the Zipes intervenors, and not the inter-venors in Mallory or Planned Parenthood, because they are not, in any plausible way, responsible for “violating] the Civil Rights Act or any other federal law.” Zipes, 491 U.S. at 755, 109 S.Ct. 2732.
Although the majority resists this conclusion, they have not disputed the logic that produces it. The majority “agree[s] that, under Zipes, fee liability should lie with the party ‘liable on the merits’ for the boundaries of the Third Congressional District.” Ante, at 941. Applying that rule, they then correctly conclude that “[h]ere, that is the Commonwealth of Virginia, whose laws ran afoul of the Federal Constitution.” Id Those two precepts necessarily lead to the conclusion that the Inter-venor-Defendants, who do not represent the Commonwealth of Virginia, cannot be held liable for fees under Zipes. In concluding otherwise, the majority relies only on the theory that “as sole defenders of the Commonwealth’s laws, Intervenor-De-fendants assumed the risk of ‘being liable on the merits’ for the unconstitutional borders of the District.” Id.
For the reasons already noted, that argument lacks merit. It conflicts with the facts of Zipes, and it makes the idea of “blameless intervenors” self-contradictory. More than that, however, it ignores the Supreme Court’s ruling that the Interve-nor-Defendants lacked standing to appeal the actual merits determination in this case. See Wittman v. Personhuballah, — U.S. -, 136 S.Ct. 1732, 1737, 195 L.Ed.2d37 (2016).33 This begs the obvious *964question: how can the Intervenor-Defen-dants be “liable on the merits” if they lacked standing to appeal the actual merits decision in this case?
The answer, of course, is that they cannot. The Intervenor-Defendants neither created nor enforced the unconstitutional statute at issue in this case, and thus are not liable on the merits for its enactment. And, because the Intervenor-Defendants here are not responsible for any violation of federal law, they cannot be held hable for fees unless the Plaintiffs show that their intervention was “frivolous, unreasonable, or without foundation.” Id. at 761, 109 S.Ct. 2732, The Plaintiffs have not made such a showing; indeed, they have not even made the argument. Thus, I would hold that the Intervenor-Defen-dants are not liable for any fees in this case, and that the Plaintiffs must bear their own cost for intervention-related expenses.34
IH.
In my view, the rule pronounced in Zipes governs all “intervenors who have not been found to have violated the Civil Rights Act or any other federal law.” Id. at 755, 109 S.Ct. 2732. Although the majority may believe that rale is “illogical,” ante, at 941, it is not empowered to overrule the binding precedent of the Supreme Court. Thus, although there may well be “various policy benefits,” ante, at 944, to the majority’s approach to intervenor fee liability, the law of Zipes still controls. The' Supreme Court weighed the various advantages and disadvantages to its “categorical” approach when it decided Zipes, and it is for' the Supreme Court to consider whether to revisit that decision. Unless and until it decides to do so, however, Zipes remains binding precedent 'on this Court, and it is our responsibility to apply it. Because I do not believe the majority opinion does so, I respectfully dissent from that part of the opinion that awards fees against the Intervenor-Defendants.
. Under 42 U.S.C. § 1988(b) attorney's fees are "part of the costs.” So, technically, an award of attorney's fees is part of the award of costs. However, the briefs, most of the cases, and the majority opinion use the terms "attorney's fees” or "fees” and so does this concurring and dissenting opinion.
. See Zipes, 491 U.S. at 762-63, 109 S.Ct. 2732.
. The majority believes this rule is ‘‘illogical,” ante at 943, because it allows interve-nors to "be eligible for fee awards, but rarely, if ever, liable for fees.” To the contrary, inter-venors will be liable for fees on the same terms as defendants—when they are held responsible on the merits for violating a plaintiffs civil rights. Similarly, intervenors will be eligible for fee awards only in the rare circumstances where they play the role of a civil rights plaintiff, i.e. when “the defendant-inter-venor is the party vindicating rights guaranteed by the United States Constitution.” King v. Illinois State Bd. of Elections. 410 F.3d 404, 423 (7th Cir. 2005). Like civil rights plaintiffs, the intervenors will also be liable for fees if their intervention is “frivolous, unreasonable, or without foundation.” Zipes, 491 U.S. at 761, 109 S.Ct. 2732; see also Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (announcing the same standard for the fee liability of civil rights plaintiffs).
. The majority also cites Charles v. Daley, 846 F.2d 1057 (7th Cir, 1988), but that case pre-dates Zipes and consequently has not been followed even within the Seventh circuit. See, e.g., Heald v. Granholm, 457 F.Supp.2d 790, 793 (E.D. Mich. 2006) (“[charles] predate[s] Zipes and must be disregarded on this basis alone ... Zipes is the controlling authority.”)
. Although the majority seems to have overlooked it, legislative immunity’ was the central, dispositive issue in Planned Parenthood, 297 F.3d at 261-265. Because the intervening legislature had “perform[ed] what is generally regarded as an executive function,” and thereby served as the "functional defendant,” the Third Circuit correctly held that they were not entitled to immunity from fees. See id. at 257 ("We conclude that, while legislators enjoy immunity for promulgating statutes, it makes little sense to provide them with this immunity when they step out of that role, as the New Jersey Legislature did here when it intervened to defend the constitutionality of the Act.”)
. While the Supreme Court ultimately held that the Intervenor-Defendants had not, for purposes of standing, sufficiently “identified record evidence establishing their alleged harm,” Wittman v. Personhuballah, — U.S. -, 136 S.Ct. 1732, 1737, 195 L.Ed.2d 37 (2016), that does not change the "central fact”, that they "litigated (and lost) not to avoid liability for violation of the law” but rather to protect their own interests. Zipes, 491 U.S. at 765, 109 S.Ct. 2732.
.The Plaintiffs have not argued that the Intervenor-Defendants’ lack of standing renders their intervention “frivolous,” and for good reason. Their intervention was agreed to by the Plaintiffs, approved of by this panel, and continued even after the Supreme Court remanded the case. Indeed, we expressly held that the Intervenor-Defendants had standing. Thus, the Intervenor-Defendants’ assertion of *964standing cannot plausibly be described as "frivolous, unreasonable, or without,foundation." Zipes, 491 U.S. at 761, 109 S.Ct. 2732
. Zipes instructs that the plaintiff bears his own costs for the portion of the case against "blameless” intervenors. 491 U.S. at 761, 109 S.Ct. 2732; see also Rum Creek Coal Sales. Inc, v. Caperton, 31 F.3d 169, 177 (4th Cir. 1994) ("[W]e nevertheless conclude that Zipes instructs us not to shift intervention-related expenses to the losing defendant."). Because fees incurred against "blameless intervenors” would not be shifted to the original defendants in this case (or any other), the suggestion by the majority that its holding protects taxpayers, ante, at 944-45, is also incorrect.